Family Law Outline

Sigman Family Law Spring 2012

· Chapter : The Family Lawyer

o An Intro and Historical Perspective

· Social Functions:

o What social functions does a family fulfill?

· Child Rearing, Retention of Wealth, Emotional and Financial Support

o How important are these social functions to the “success” of a society?

· Traditionally:

o Traditionally a nuclear unit would have the woman as the caretaker and the man as the breadwinner

o The “Unity” doctrine:

· This is when upon marriage, men and women merge as one unit and the wife needed to have her husbands consent to do anything such as make contracts, sue people, etc.

o The “Married Women’s Act”

· This is where the wife became competent to sue in her own name for injured to herself and could retain the proceeds of those actions

· The r-ship of state to family:

o Given the importance of the family to civilized society, what is the extent of the state’s role in marriage/family in our history?

o Maynard v. Hill:

Brief Fact Summary. A brief discussion regarding the legal nature of marriage.

Synopsis of Rule of Law. Marriage creates rights, duties and obligations of law, consisting of more than a civil contract.

Facts. A brief discussion regarding the legal nature of marriage.

Issue. Is marriage a contract, a status, or does it retain features of both?

Held. Marriage is more than a mere contract. Although it requires consent of two parties, it creates a relation between the parties that cannot be changed. Marriage is an institution, a social relationship comparable to that between a parent and a child.

Discussion. This is a short excerpt from a case addressing the nature of marriage. The decision addressed the fact that although marriage is often termed as a civil contract, the rights, duties and obligations established are those of law, not of contract.

· The courts were looking to Parliament as a guideline and the act stated that they could live together as a sort of “separation”

· Was there any Constitutional challenge in the case?

§ Yes, there was a discussion but it said unless something was Constitutionally written, then the law in England said that divorce was ok…

· And we get our laws from England, thus, we should allow the divorces

§ Also an issue under the Constitutions’ K clause in claiming that the marriage existed as a Contract

· In short, the government has the power to regulate divorce and marriage

§ Maynard lets us know that there is the power to regulate the family. The government has the power to regulate marriages as they are different from regular contracts.

· Jackson v. Jackson

o Basically, a man and woman were married and they were domiciled in NY and then the women went to Vermont to get a divorce and the Courts were reluctant to allow the divorce in NY bc they were not yet recognized there

o What did the court say about her being beaten and threatened?

· NOTHING

o Is Nancy left with no recourse after this case?

· No remedy unless the husband comes to Vermont and then he can be served there

o The court also points out that even if the wife had moved to Vermont and established residency, then she still could not have established the domicile without her husband

o Holding:

· The court found for Archibald here

o THUS…

· Now not only can federal governments regulate the family but now the STATEs too can regulate the laws and the states will zealously protect their laws to ensure that people will not jump to another state to evade the laws of one state. The woman’s domicile (she was a NY resident) was her legal disability that affected her from getting her Vermont judgment alimony payments enforced in NY court. State in which married person is domiciled will guard their marriage laws zealously. Lex Loci- the law of the place where the marriage occurs governs its validity.

§ Restatement (Second of Conflicts)- marriage satisfying requirements of the state where contracted is valid everywhere unless it violated the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage

· In frauden legis:

§ this means that it cant be the basis of a suit in the courts of the country whose laws are attempted to be infringed. Fraud against the state’s law to avoid the law or against the public policy of that particular state where the law is trying to be enforced.

· 18th century family in U.S.

o Family and community closely linked

o Family is a refuge from the state

o Family privacy strong

o Church had strong control over families

o State and families closely connected

o Views of family r-ships and “ownership” were clear

· Women-property of man

· Children-property of man

· Property- property of man

· Children out of wedlock-child of no one

· State v. Snyder

o The parties may not re-marry for six months unless the court decides longer then the state can regulate up to five years

o The woman wanted to get re-married pretty much immediately after but that was not allowed bc in her divorce decree said that she was given the maximum penalty of five years and the woman was at fault in causing the divorce.

o But..other statues seen on Illinois and Virginia and Kansas say that the guilty party may not re-marry for their entire lifetime

o Takeaway:

· The state to a very large extent, will take very extraordinarily excessive marriages to protect the sanctity of the union of marriage

· NC- provision where you can get a divorce in North Carolina without having to prove fault, but there is no “no fault” statute.

· Wightman v. Coates

o Woman is suing a man bc she is saying that he offered to married her and then re-tracked his offer and therefore it is a breach on contract case

o The court felt like that once a woman was deserted, she would be less desirable and thus she is the one who is more injured

· They also say that they are afraid that the woman would bang the guy and thus, her reputation would be tainted and thus, she would be less desirable

· This is based on property law and saying that the father would loss interest in his “property”/daughter and thus, the property was damaged through the breach of K

o Holding:

· The jury decided that this was enough and that the woman was damaged enough to need the proper protection

· 18th/early 19th Century

o During this period, what cultural factors may have influenced the state in enacting very strict divorce laws?

· America was agragarian with a number of families living in rural areas (18-19th Century)

· 19th Century- Industrial revolution had the greatest impact on how family was viewed

· 20th Century- enormous change. Child labor laws go into effect. Universal education. Communication explodes. Traditional views of marriage and divorce are challeneged with women behind the workforce of two World Wars. Abortion Rights, birth control, definition of a traditional family is changed dramatically.

o During this period, what cultural factors may have influenced the state in its efforts to enact “heart balm” statutes?

· Alienation of affection (still cause of action in NC)

· Criminal conversation (still cause of action in NC)

· 20th Century issues:

o Birth control

o Abortion rights

· Woman may control their own bodies

o Defintion of family challenged

· Are same-sex couples a “family”

· Are committed heterosexual couples living outsi